Mehraj
Singh Vs. State of U.P [1994] INSC 252 (21 April 1994)
Anand,
A.S. (J) Anand, A.S. (J) Faizan Uddin (J)
CITATION:
1994 SCC (5) 188 JT 1994 (3) 440 1994 SCALE (2)632
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by DR ANAND, J.- These two appeals under
Section 2(a) of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970, are directed against the judgment of the Allahabad
High Court allowing the appeal of the respondent State and setting aside the
acquittal of the appellants in both these appeals. Since, the appeals arise out
of the common judgment, these are being disposed of by this common judgment.
2. Kalu,
Neelu, Meharaj Singh and Babu were challaned by the police for an occurrence
which took place on 3-11-1977 at 11.00 or 11. 15 a.m. at Village Dhanju
in which one Laxman Singh was murdered. The trial court acquitted all the
accused, against which order the State went up in appeal to the High Court. Neelu
died during the pendency of the appeal in the High Court and, therefore, appeal
against him abated. The High Court maintained the acquittal of Babu who is the
sister's son of Kalu and Neelu, the two brothers, while convicting Kalu and Meharaj
Singh for various offences. The State has not filed any appeal against
acquittal of Babu. Kalu and Meharaj Singh have filed two separate appeals, as
noticed earlier.
3.
According to the prosecution case, on account of some pending criminal
litigation against the deceased, his father and some other members of his
faction for causing injuries to Neelu and Kalu and their father, the relations
between the parties were strained and both sides were hostile to each other. On
3-11-1977 at about 11.00 a.m. when deceased Laxman Singh along with his wife Smt
Kamlesh PW 2, were loading jawar in their cart, kept at the chak road, accused
persons armed with gun, country-made pistol and knife attacked him. Neelu and Kalu
are alleged to have shot at the deceased from their respective weapons, Meharaj
Singh, appellant, is alleged to have caused injuries with a knife to the
deceased after he had fallen down.
4. The
first information report was lodged by Makhar Singh, father of the deceased on 3-11-1977, at about 12.45 p.m. at Police Station Daurala at a distance of 4 kms from the place of occurrence.
The investigation of the case was conducted by Sub-Inspector Sultan Singh PW 8
at the initial stage and was then taken over by PW 9 Laxman Singh Sub-
Inspector. Sultan Singh PW 8, according to the prosecution version, reached the
scene of occurrence at 2.00
p.m. and prepared the
inquest report of deceased Laxman Singh whose dead body was found at a distance
of about 21 steps from the khajoor tree which stood on the dividing line
between the fields of Balbir Singh and Ganga Saran. The investigating officer
noticed presence of the cart of the deceased at a distance of five steps from
the khajoor tree. The dead body of the deceased was sent for postmortem
examination which was conducted by Dr N.K. Pande PW 10, who found a number of
gunshot wounds on the deceased besides eight incised wounds.
Dr Pande
also found that the stomach contained partially digested food material weighing
about 150 gms. 18 big shots and 80 pellets, along with wadding pieces, were
recovered from different parts of the body of the deceased during the
postmortem of the deceased.
191
MEHRAJ SINGH v. STATE OF U.P. (Anand, J.)
5. The
trial court, after appreciating the evidence on the record, opined that the
first information report was ante- timed and that the ocular testimony was contradicted
by medical evidence. The trial court also found the evidence of the alleged
eyewitnesses PWs 2, 3, 4 and 5 as unreliable not only on account of the fact
that they were all interested in the prosecution but also because their conduct
was found to be unnatural. The trial court found merit in the case set up by Neelu,
deceased and Babu, the acquitted accused. Their case was that it was a blind
murder and since none of the alleged eyewitnesses had actually seen the
occurrence, they had roped in the accused persons only on account of the
previous enmity on mere suspicion. The High Court agreed with the trial court
except insofar as the complicity of the two appellants is concerned and set
aside the order of acquittal recorded against them. We shall refer to relevant
portions of the evidence during the course of discussion and do not consider it
necessary to reproduce the entire evidence, which has been extracted by both
the courts below extensively.
6. The
manner of occurrence was deposed to at the trial by Smt Kamlesh PW 3, widow of
the deceased. She stated that when she along with her husband were bringing the
second bundles of jawar, after having placed the first two bundles in the cart
earlier, all of a sudden a shot was fired at her husband on receipt of which
the bundle of jawar fell down.
She
deposed that Neelu accused armed with a gun, Kalu and Babu accused each
carrying a pistol and Meharaj Singh armed with a knife were seen present near
about, at a distance of about 1/2 hath from her husband. She went on to add
that her husband went towards the cart, but could hardly reach the boundary of
the field of Balbir Singh, when Neelu, Kalu and Babu again fired at him. He
fell down and, thereafter, Meharaj Singh came there and inflicted injuries on
him with the knife. According to her testimony Neelu had fired about 6-7 shots.
She raised an alarm which attracted Balbir PW 2, Shiv Charan PW 4, Satkarl PW 5
and others. They also witnessed the occurrence. She went on to add that Neelu, Kalu
and Babu each had reloaded their firearms during the incident once and they had
fired at the deceased twice. The assault with the knife by Meharaj Singh
continued for about half a minute to one minute and that the deceased was lying
on his right side when he breathed his last. During her cross-examination she
admitted that she took no steps to save her husband by either falling on her
husband or taking the assault on herself. She admitted that she did not even
receive a scratch during the entire occurrence and her clothes neither got torn
nor even got stained with blood.
Balbir
Singh PW 2, Shiv Charan PW 4 and Satkari PW 5 have generally supported her
testimony. Balbir Singh PW 2 admitted in the cross-examination that he arrived
at the scene after he heard the sound of firing and also of weeping but still
went on to say that he had seen all the accused firing at the deceased twice
after reloading their firearms.
According
to him the repeated firing had taken place from a distance of 3-4 steps from
the deceased. He further deposed that he had conveyed the details of the
incident to Makhar Singh father of the deceased, who had also reached the scene
of occurrence. On his own showing, his statement was recorded by the
investigating officer in the 192 presence of SHO and about 25 other persons in
his village in the evening and not at the spot, though the investigating
officer had arrived at the spot while he was still there.
7. Shiv
Charan PW 4 deposed about the weapons which each of the accused was armed with
at the time of the occurrence as well as the manner of assault on Laxman
deceased. He admitted that he did not make any attempt to save Laxman and went
on to add. that he did not do so because he had been terrorised by the accused
with their firearms. He also narrated the occurrence to Makhar Singh after the
latter arrived at the scene. In the cross-examination he admitted that he was a
witness for Neelu in a criminal case which he had instituted against the
deceased Laxman and others but that he had not been examined till then in the
case against Laxman and others and added that in that case it was only Laxman
deceased who had caused injuries to Neelu, Kalu and Sri Ram by lathis. He
admitted that on, the date of the incident he could not go to his field to see
whether it was fit for being ploughed or not and that he went there only the
next morning. He also admitted that he himself is an accused in a case relating
to the murder of a lawyer, by name Vinod, which case was still pending. He
pleaded ignorance whether Neelu accused is a witness against him in that murder
case. He admitted that Yad Ram and Makhar Singh had stood surety for him in the
said murder case against him. According to him the present occurrence was also
witnessed by Resham and Jog Raj. Prosecution has, however, not examined them as
witnesses at the trial. Satkari PW 5 also generally supported the version given
by Kamlesh PW 3 and Balbir Singh PW 2. He denied that he was a servant of Makhar
Singh. He also named Resham as an eyewitness. After having noticed the
substratum of the ocular testimony, we shall now deal with the medical
evidence.
8. Dr
N.K. Pande, PW 10 conducted the postmortem examination of the deceased. The
details of the injuries have been given in the judgment of the High Court as
well as in the judgment of the learned Sessions Judge. We need not, therefore,
reproduce the same. He had found gunshot wounds as well as incised wounds on
the deceased. Out of the injuries noted by Dr Pande, injuries 1-7, 9 and 13
were gunshot wounds of entry on different parts of the body of the deceased.
The High Court observed that injuries 1, 2 and 3 had been caused by one shot;
4-6 and 13 by second shot, 7 and 8 by the third shot while 9 and 10 by the
fourth shot. This, however, is the observation of the High Court and not the
opinion of the doctor because no elucidation was sought from the doctor in this
behalf. Looking to the injuries from the postmortem report, it is obvious that
injury 4 consists of nine gunshot wounds in an area of 7 x 5 cms. This could
most probably be the result of one shot only as the direction is towards the
back. The direction of injuries 5 and 6 is from below upwards and, therefore it
is possible that injuries 9 and 13 could have been caused with the same shot.
The High Court divided the injuries, without any basis and ignored certain
vital aspects like the factum that injury 13 consists of three wounds on the
right arm upper part which is at quite a distance from injury 4. There is no
evidence, 193 direct or indirect, about the height or health of the deceased
but nonetheless the High Court attempted to explain the direction of injuries 5
and 6 by observing that the deceased was well-built and so would be presumed to
be taller than the accused assailants. This is a purely conjectural finding
based on surmises and not on any evidence on the record. That he was well-built
is deposed to by the eyewitnesses also but no question was asked about his
height from anyone. The High Court also, without any evidence, observed that
the level of the pathway is normally slightly higher than the field with a view
to explain the direction of the injury as from upwards. In doing so the High
Court ignored, the evidence of PW 3 to the effect that the level of path was
only about six fingers. According to the ocular testimony of PWs 2-5, the first
shot was fired by Neelu from a close range of about 2 paces and the others were
fired by him from a distance of about 6 and 7 paces.
There
was blackening and tattooing around injuries 1, 2, 7, 9 and 10. The presence of
blackening and tattooing would show that the shots had been fired from a closer
range. No explanation was offered by the prosecution and the High Court also
did not properly appreciate this aspect of the case. The finding of the High
Court regarding the incised wounds found on the dead body of the deceased is
even more conjectural which is neither supported by the medical data nor by the
medical opinion. Dr Pande pointed out the difference in width of various
incised wounds according to which it is obvious that more than one sharp-edged weapons
had been used on the deceased. Yet the eyewitnesses have attributed the knife
blows to only one of the appellants, Meharaj Singh, and that too by one knife
only. Injury 11 on the deceased was found to be L shaped while injury 18 has
been found to be semi-circular. The other incised injuries were also of
different dimensions. The trial court noticed these discrepancies and gave
benefit of doubt to the accused by holding that the prosecution had not been
able to establish the case against them beyond a reasonable doubt.
The
High Court discarded the reasons of the trial court but without seeking any
explanation from the doctor regarding the number of sharp-edged weapons which
might have been used, went on to surmise that since the injuries were in some
cases on the fleshy part of the body and some on the bony part, the difference
in the width was bound to occur.
We are
conscious of the fact that the. medical evidence is only an evidence of opinion
and is not conclusive but then the High Court can also decide the case on the
basis of the evidence led and not on what ought to have been led. No
explanation from the medical witness was sought about the reason for three
different types of incised injuries found on the deceased and whether the same
could have been caused by one weapon alone. According to Dr Pande, the presence
of semi-digested food would show that if the deceased had taken his food at
about 7.00 a.m., his death could have taken place
between 9.00 and 9.30
a.m. It would imply
that the occurrence took place much earlier than is alleged by the prosecution.
These aspects were not considered in their proper perspective by the High
Court. We are constrained to observe that the approach of the High Court in
dealing with the medical evidence, in our opinion, was not proper and
satisfactory and on 194 the other hand the learned First Additional Sessions
Judge, Meerut dealt with the same in an appropriate manner.
9. We
find force in the submission of Mr Tewatia, the learned Senior Counsel
appearing for the appellant that the FIR had been ante-timed and thus the
investigation was tainted.
10.
According to the testimony of PW 8 Sultan Singh Sub- Inspector, he reached the
place of occurrence at about 2.00 p.m. on 3-11-1977. The dead body of Laxman was lying at the place of
occurrence. He prepared the sketch of the dead body. Before coming to the place
of occurrence, the FIR had already been lodged at the police station in his
presence and he had commenced the investigation thereafter.
After
preparing the inquest report at the spot, he sent the dead body for postmortem
examination along with Constables Mahabir Singh and Sikhbir Singh. He further
deposed that he had found blood at the place of occurrence and had collected
samples of bloodstained soil. He admitted that he recorded the statements of
the witnesses Kamlesh and Shiv Charan at the spot while that of Balbir Singh in
his village and that when he recorded the statement of Balbir Singh, other
witnesses were not present in the village. In the cross- examination the
witness stated that he did not find any trailing of blood from the field of Kirpal
Singh to the place where the dead body was actually found nor any blood in the
field of Kirpal Singh. He also did not show in the site plan the portion of the
field from where the fodder had been cut. On being recalled, the witness stated
that Balbir had not stated before him that Makhar had reached the place of
occurrence and that he had disclosed the incident to him.
The
investigating officer, however, offered no explanation as to why he had not
recorded the statement of Balbir Singh, if as deposed to by Balbir Singh, he
was present at the site when the investigating officer came there. The trial
court had found that the FIR had been ante-timed but the High Court discredited
that finding of the trial court and came to the conclusion that the FIR had
been recorded at the time as alleged by the prosecution and that there was no
unfairness or taint in the investigation. For the reasons which we shall
presently demonstrate, we are of the opinion, that the FIR in the case was not
recorded at the time as alleged by the prosecution.
11.
According to PW 3 Kamlesh, the deceased had left the house at 7.00 a.m. He
would, therefore, have taken his food before leaving the house because it is
not the prosecution case. that food was served to him while he was in the
fields. Death, according to the medical witness, could have occurred within
about 2 or 2 1/2 hours from the time the deceased had taken food on account of
the presence of 150 gms of semi-digested food in the stomach of the deceased.
According
to PW 3, however the occurrence took place at about 11.30 a.m. which would
imply that the deceased took his food later and did not leave his house at 7.00
a.m. but at about 9.30 a.m. That is nobody's case. The effort on the part of Kamlesh
PW 3 to show that the occurrence took place at 11.30 a.m. appears to have been made because she wanted to back up the
prosecution story by stating that the FIR had been lodged promptly at 12.45 p.m. by Makhar Singh and that she had seen the 195
occurrence. According to the prosecution case PW 8, the investigating officer,
left for the place of occurrence after the case had been registered at a the
police station but we find that in the inquest report which was prepared by PW
8 Sultan Singh, the investigating officer at the spot, the number of the FIR or
the crime No. has not been given.
Even
the heading of the case, does not find mention in the inquest report. No explanation
has been furnished for the omission of these vital matters from the inquest
report.
Was it
because no FIR had actually been registered at the time as alleged by the b
prosecution and PW 8 had reached the spot and, after, some consultations and
deliberations it came into existence? In this connection it is also relevant to
note that copy of the FIR was not even sent to the medical officer along with
the inquest report and the dead body for postmortem. The explanation of PW 8
for not sending the copy of the FIR or mentioning the name of the case or the
crime No. in the inquest report is wholly unacceptable and the High Court erred
in accepting the ipse dixit of Sultan Singh PW 8. It deserves to be noticed
that in the inquest report even the name of the accused has not been mentioned.
It also does not contain the names of the eyewitnesses or the gist of the
statement of the eyewitnesses. It does not reveal as to how many shots had been
fired or how many weapons had been used. The inquest report is not signed by
any of the eyewitnesses, although the investigating officer has categorically
asserted that Kamlesh and Shiv Charan were present at the place of occurrence
when he visited and he recorded their statements.
If he
had actually recorded their statements, there is no reason why the details
which we have found missing from the ]Inquest report should not have been
there. There is yet another factor which is very relevant. The prosecution led
no evidence to show as to when did the copy of the FIR, special report, which
was required to be despatched under the statutory provisions of Section 154 CrPC
read with Section 157 CrPC promptly, to the Magistrate was actually despatched.
There is no evidence either to show as to when the copy of the FIR was received
by the Magistrate. PW 8 has remained singularly silent on this aspect of the
case.
According
to PW 3, the Police Inspector had taken her thumb impression at the site, but
the prosecution has withheld that document from scrutiny of the courts, for reasons
best known to it. The argument of Mr Tewatia, the learned Senior Counsel that
since no FIR had been registered till the investigating officer arrived at the
spot and conducted the inquest proceedings, the thumb impression of PW 3 was
taken by the police on a document which was required to be used as an FIR,
cannot be said to be without any merit. It was the duty of PW 8 to explain as
to on which document he had obtained the thumb impression of the widow of the
deceased at the spot and produce that document for scrutiny of the courts. He
did not do so.
12.
FIR in a criminal case and particularly in a murder case is a vital and
valuable piece of evidence for the purpose of appreciating the evidence led at
the trial. The object of insisting upon prompt lodging of the FIR is to obtain
the earliest information regarding the circumstance in which the crime was 196
committed, including the names of the actual culprits and the parts played by
them, the weapons, if any, used, as also the names of the eyewitnesses, if any.
Delay in lodging the FIR often results in embellishment, which is a creature of
an afterthought. On account of delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also creeps in of the introduction of a coloured
version or exaggerated story. With a view to determine whether the FIR was
lodged at the time it is alleged to have been recorded, the courts generally
look for certain external checks. One of the checks is the receipt of the copy
of the FIR, called a special report in a murder case, by the local Magistrate.
If
this report is received by the Magistrate late it can give rise to an inference
that the FIR was not lodged at the time it is alleged to have been recorded,
unless, of course the prosecution can offer a satisfactory explanation for the
delay in despatching or receipt of the copy of the FIR by the local Magistrate.
Prosecution has led no evidence at all in this behalf. The second external
check equally important is the sending of the copy of the FIR along with the
dead body and its reference in the inquest report. Even though the inquest
report, prepared under Section 174 CrPC, is aimed at serving a statutory
function, to lend credence to the prosecution case, the details of the FIR and
the gist of statements recorded during inquest proceedings get reflected in the
report. The absence of those details is indicative of the fact that the
prosecution story was still in an embryo state and had not been given any shape
and that the FIR came to be recorded later on after due deliberations and
consultations and was then ante-timed to give it the colour of a promptly
lodged FIR. In our opinion, on account of the infirmities as noticed above, the
FIR has lost its value and authenticity and it appears to us that the same has
been 'ante-timed and had not been recorded till the inquest proceedings were
over at the spot by PW 8.
13. It
appears that it was a blind murder and none of the eyewitnesses were actually
present at the scene. The ante- timing of the FIR was obviously made to
introduce eyewitnesses to support the prosecution case. We may demonstrate this
by noticing that though PW 3 Smt Kamlesh the widow of the deceased claimed that
she was present with her husband at the time of the occurrence, her conduct was
so unnatural that not only she did not try to save her husband by trying to
provide a cover but even after her husband fell down and was inflicted repeated
injuries with the knife by the appellant Meharaj Singh, she did not even try to
go anywhere near her husband and even later on hold his head in her lap and try
to provide some comfort to him.
This
becomes obvious from the absence of any bloodstains on her clothes. She
admitted that she had not even received a scratch during the occurrence. In a
situation like this, the normal conduct of any wife would be firstly to make an
effort to save her husband even by taking the blow on herself and if that is
not possible then at least to go so close to his person, at least after the
assailants had left that there would be no escape from the blood oozing out of
the injuries of the deceased to come on to her clothes.
Similar
criticism is also available against Balbir PW 2, Shiv Charan PW 4 and Satkari
PW 5. It is not the case of the prosecution that the clothes of any 197 of them
had got bloodstained. The very fact that none of these witnesses went to lodge
a report and instead left it to the father of the deceased to lodge the FIR
would also go to show that the witnesses in all probability were not present at
the spot. The absence of any blood in the field of Kirpal Singh as also the
absence of blood trail from the field of Kirpal Singh to the place where the
dead body was found, as admitted by PW 8, also suggests that the occurrence did
not take place in the manner suggested by the prosecution and that the genesis
of the fight has been suppressed from the court. The evidence of Dr Pande who
conducted the postmortem examination showing that the stomach contained
partially digested food material weighing about 150 gms and concluding therefrom
that the occurrence must have taken place between 9.00 and 9.30 a.m. if the
deceased had taken his food at 7.00 a.m. would also throw a doubt on the
correctness of the prosecution version which alleged time of occurrence as
11.30 a.m., presumably to lend an assurance that PWs 2, 3, 4 and 5 were present
in the field at that time. The evidence of Dr Pande also to the effect that he
had found incised injuries on the deceased including a L shaped injury (injury
11) and a semi-circular injury (injury 18) is indicative of the fact that these
two injuries were caused with different weapons and looking to the nature of
the other incised wounds present on the deceased, the possibility that three
types of sharp-edged weapons were used cannot be ruled out. That being the
position, it is obvious that the ocular testimony does not fit in with the
medical evidence and instead it contradicts it.
14. It
is interesting in this connection also to note that Satkari PW 5 named Resham
also as an eyewitness. The High Court rightly held Satkari to be a chance
witness also but the prosecution has not explained as to why Resham who was
alleged to be an eyewitness has not been examined.
According
to Balbir PW 2, Jog Raj was also an eyewitness.
He too
has not been examined. Shiv Charan PW 4, also named Resham and Jog Raj as
eyewitnesses. Thus, it appears to us that a concerted effort was made by the
prosecution witnesses to introduce Resham and Jog Raj as false eyewitnesses in
the case but since they have not been examined, it would be fair to draw a
presumption, that they perhaps were not prepared to support the false case.
The
High Court while setting aside the order of acquittal did not deal with these
various infirmities.
15.
The alleged eyewitnesses are undoubtedly deeply interested in the prosecution
but that by itself cannot be a ground to discard their testimony. It, however,
certainly puts this Court on its guard to scrutinise their evidence more
carefully and keeping in view their unnatural conduct, as noticed above, it
appears to us that none of the alleged eyewitnesses had actually seen the
occurrence and they were introduced as eyewitnesses after thoughtful
deliberations and consultations. It appears, that since it was a blind murder,
the appellants have been roped in on account of misguided suspicion because of
the previous enmity. Our independent analysis of the evidence on the record
coupled with the infirmities which we have noticed above has created an
impression on our minds, that the prosecution has not 198 been able to bring
home guilt to either of the appellants beyond a reasonable doubt. The trial
court was, therefore, right in acquitting them and the High Court even after
noticing the infirmities, in our opinion, fell in error in convicting the appellants.
The reasons given by the High Court, to set aside the order of acquittal do not
commend to us. They are neither sufficient nor adequate or cogent much less
compelling.
16. As
a result of our above discussion, we hold that the case against both the
appellants has not been proved beyond a reasonable doubt and that they are
entitled to benefit of doubt. Their appeals consequently succeed and are
allowed.
The
conviction and sentence recorded against them by the High Court are set aside.
The appellants shall be set at liberty forthwith, if not required in any other
case.
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